Tuesday, August 22, 2006

welcome back UM!

it's a grey and rainy day in miami, but it's okay, because our beautiful lawns and beautiful trees need the water -- not that they wouldn't be getting it if it weren't raining, mind you, but this way, hopefully, the university will turn off the sprinklers and let nature take care of itself!

as you admire our spiffed up campus, please keep in mind the men and women who've been putting in a lot of underpaid overtime in the last few weeks to make it look its very best for the beginning of the new year.

now that our UNICCO workers are finally unionized (even these many months later, i cannot write these words without a tinge of disbelief and awe), new contract negotiations are under way. they are taking place as i type. i'll keep you informed.

on a more somber note, i'd like to remember here the mother of pablo rodriguez, one of the ten workers who went on a hunger strike last spring. a couple of weeks ago julia felt ill during a very long shift in 95 degree temperatures. he coworkers had told her to go home or at least take a break, drink some water. but she's always been that way, the hardworking type. she died at the hospital two days later. some of you may remember her: she came to freedom village late in the evening, to spend the night with pablo. pablo's hunger strike was, in large measure, for her: he had already lost his UNICCO job when he started it. our hearts go out to pablo and his family.

and just when you thought the student saga was over, with all of the students accepting the university's handing down of probation, community service (!), and some writing exercises, well, no, it isn't over. last thurday brian lemmerman, a STAND student, sued the university of miami:

A contract lawsuit filed Thursday in Miami-Dade Circuit Court accuses the University of Miami of unfairly disciplining a student who peacefully demonstrated against the school’s labor policies during a union drive by its janitors.

The suit, filed by Miami attorneys Lida Rodriguez and Kenneth Kukec, alleges that UM officials railroaded their client, Brian Lemmerman, by flouting the school’s disciplinary procedures and ignoring conflicts of interest. Kukec and Rodriguez claim that UM’s actions constitute a breach of contract.

(read the full article from the daily business review in the first comment).
in the miami herald, ana mendendez wrote a scathing piece on the lawsuit and its significance.

even the students who settled are not happy. like many of us, they feel that the proceedings cast a dangerous precedent on freedom of speech on campus. jane connolly, STAND's faculty advisor, has written two impassioned letters about two students whose hearings she was personally involved with. i'm reprinting both of them in full:

august 18:
Dear Colleagues,

I met this morning with Katharine Westaway, a graduate student who has been subjected to disciplinary action by the administration. She shared with me her concerns about the status of free speech for students on campus and the significance of this summer's disciplinary actions for students in the future. With Ms Westaway's permission, I share with you her experiences and concerns.

Ms Westaway, an MA student in English, is a senator in the Graduate Student Association. A week before receiving her summons, she was informed by James Fatzinger, Assistant Dean of Students, that she had been selected to serve on the honor council. (Does anyone besides Ms Westaway and me find this appointment ironic, given that she would soon face disciplinary charges at the time and that Mr. Fatzinger would subsequently serve as the judge for her hearing?) Since she would be away from campus for the entire summer and traveling for a portion of it, Ms. Westaway requested that her hearing be postponed until the fall. In this way, she could attend, present witnesses and be judged by a jury of her peers. As with all such requests, she was denied. On 29 June, while attending a program at Johns Hopkins, Ms Westaway participated in a "hearing" telephonically. I use quotation marks as it is clear that very little was actually *heard* by the administration in this or any other case.

Although she was asked if she wished to present witnesses, Ms Westaway wondered just how she would do this in the middle of summer when everyone had scattered and she herself wasn't present. The hearing was presided by Mr. Fatzinger who had also been present at the events where Ms Westaway's alleged violations occurred. Indeed, Mr. Fatzinger took photos of Ms Westaway in front of Ashe that she was asked to identify during her proceeding, as can be seen in a window reflection of Mr. Fatzinger seen in one of these photos. Can anyone say "conflict of interest"? (BTW: in all the photos, Ms Westaway is seated on the ground reading with tape over her mouth. How disorderly and disruptive is that?) The administration's case was presented by Gregory Singleton, Associate Dean of Students and therefore of higher rank than Mr. Fatzinger. It seems odd to have the judge have less power than the prosecutor/investigator, no? The hearing lasted about 45 mins. with a guilty verdict given immediately at the conclusion. Nothing like thoughtful reflection. Ms Westaway's punishment: 2 semesters of probation, 10 hrs. of community service, and a 500-word reflection. The relatively low number of hours of community service was because Mr. Singleton had only seen her in front of Ashe on one day. So, the prosecutor decides the severity of the punishment based on his own eyewitness experience? Again, can anyone say "conflict of interest"? Ms Westaway learned this week in an email from Mr. Singleton that she was late in completing the community service and the reflection. According to the email I saw, he said he sent a letter to her "about July 7" which informed her that the deadline for completion was 29 July. Mind you, he had been told that she was traveling for most of the summer, yet somehow expected her to receive this letter (which she still has not received) and
complete two-thirds of her punishment in three weeks.

Ms Westaway felt that she had virtually no rights in facing these disciplinary proceedings. She was not given a real opportunity to present her case with witnesses before her peers, nor could she have counsel (legal or academic) present to aid her. Quite simply, she was not accorded an impartial, democratic process. She is gravely concerned, as am I, that these hearings will set precedents for future disciplinary actions and that students will routinely be accorded no rights. She asks that we work to prevent this, for the sake of free speech and student rights.


Jane Connolly

august 21

Dear Colleagues,

On 7 July, a "hearing" was held for the disciplinary charges against Alyssa Cundari, a first-year student. With Ms Cundari's permission, I share with you some details from that hearing.

Dayle Wilson, Assistant Dean of Students, presided the case which Gregory Singleton, Associate Dean of Students, investigated and prosecuted. (I have already commented on this uneven power structure elsewhere.) The two witnesses for the prosecution were Richard Walker, Assistant Vice President for Student Affairs, and Keith Fletcher, Director of Butler Volunteer Services. The judge, investigator/prosecutor and two witnesses are all under the Student Affairs umbrella. Ms Cundari presented as witnesses two professors (Frank Palmeri and me) and a graduate student (Shelly Stromoski). I leave it to Dr. Palmeri and Ms Stromoski to tell you of their experiences, if the choose. I will share mine as they supplement Ms. Westaway's experience.

As with other students, Ms Cundari was not allowed to have her hearing postponed until the fall. She returned to Miami the day before the hearing to present her case, finding what witnesses she could in July. I was very impressed with Ms Cundari's composure, maturity and determination against the odds. In response to her questions, I attested to the following:

1. The students all behaved in an orderly fashion. It's hard to call a group of students disorderly when they stand with tape over their mouths and hum "We Shall Overcome," pray, or sit reading books on poverty. I noted that I grew up in Oakland in the 60s, during the rise of the Black Panthers and the Free Speech/Anti War movements, attended Berkeley as an undergraduate and taught at Wisconsin-Madison. I've seen disorderly conduct, and our students were always peaceful, orderly and respectful.

2. The students did not block access to Ashe. Following the initial demonstration, which Charles Steele and many clergy attended, they always made sure that doors were accessible. The administration took the decision to lock those doors, and thus obstructed access. I also witnessed the students helping people (students trying to get advising before registration, potential students and parents, etc.) find their way into Ashe since the administration simply locked the doors and provided no assistance to those wishing to enter to do business there.

3. As an administrator in Ashe at the time of Ms Cundari's alleged misconduct, I attested to the fact that the only complaints I received regarding access and disorderly conduct related to the administration. Faculty were especially disturbed by the way they were treated by security personnel, students found it difficult to get in to see advisors, and everyone (including the cops I spoke to) found the decision to turn on the sprinklers absurd. Indeed, the students were going to move from the entry of Ashe to the lawn until the sprinklers came on and eliminated that possibility.

4. Ms Cundari presented photographs of herself, asking me to identify what she was doing: she was sitting in front of Ashe reading. I further testified that I had seen her on other occasions studying for a Chemistry exam. I don't think that reading and studying are considered disorderly activities on most campuses.

5. I was present when Dean Sandler delivered many of his warnings. He simply told the students that they had to leave, but never said that a warning was final, never gave a deadline, never stated possible consequences. In other words, he never said: "If you do not leave by X hour, the following disciplinary charges will be brought." From my point of view, this was a mistake. I know from my discussions with students during the events in question that they were prepared to leave if they were given a final warning, something that Ms Westaway reconfirmed in my discussion with her last week. They simply weren't given that warning.

Mr. Singleton asked me only two questions. The first was about my familiarity with the students' rights and responsibilities handbook. Yes, and I'm appalled by the way it's being construed. (OK, I only said yes, not wanting to prejudice Ms Cundari's case.) The second was how familiar I was with the office of the Dean of Students and whether I had found that office to be fair in the past. I noted that I have been involved with issues ranging from academic dishonesty to inappropriate conduct, and had dealt almost exclusively with Dean Sandler, whom I always found to be fair. I had little experience with the other members of the office and therefore could not judge their fairness. He asked me no questions about Ms Cundari's conduct.

The independent testimony of two professors and a student did little to persuade Ms Wilson or Mr. Singleton. As in the case of Ms Westaway, Ms Cundari was found guilty at the conclusion of the hearing, with the same punishments as Ms Westaway. I have little doubt that the findings in both cases were predetermined. Do we really want students to be subjected to pro forma justice? If we tolerate this, who will be next?


Jane Connolly

1 comment:

fwj said...

Due Process
August 18, 2006-Daily Business Review

Suit claims UM wrongly disciplined protesting student

A contract lawsuit filed Thursday in Miami-Dade Circuit Court accuses the University of Miami of unfairly disciplining a student who peacefully demonstrated against the school’s labor policies during a union drive by its janitors.

The suit, filed by Miami attorneys Lida Rodriguez and Kenneth Kukec, alleges that UM officials railroaded their client, Brian Lemmerman, by flouting the school’s disciplinary procedures and ignoring conflicts of interest. Kukec and Rodriguez claim that UM’s actions constitute a breach of contract.

As part of the suit, Lemmerman’s lawyers plan to raise the issue of what role campus police officers played in surveillance of students during the labor protests. This could renew the longstanding debate over whether it is appropriate for campus police officers at the private university to be sworn officers of the city of Coral Gables Police Department.

City police officers are unionized. But UM in the past has rejected the claims of its campus officers for full rights under the police union contract.

UM’s attorney, Eric Isicoff of Isicoff Ragatz & Koenigsberg in Miami, said he could not comment on Lemmerman’s case, but that the university is not bound to the letter of its written disciplinary procedures. “Certainly there is decorum and there is procedure, but the university does have some discretion,” he said.

Lemmerman became involved in protests this spring, as janitorial and service workers went on strike to demand better wages, benefits and safety oversight on the Coral Gables campus. On April 24, Lemmerman received a notice to appear at a hearing where he would be informed of disciplinary charges.

According to the lawsuit, however, dean Gregory Singleton used the hearing to question Lemmerman about his actions while protesting rather than inform him of the charges against him. Lemmerman’s lawyers, who are handling the case pro bono, said this was the first of many violations of the disciplinary procedure outlined in the University of Miami Student Rights and Responsibilities Manual.

Lemmerman was one of 18 UM students who faced disciplinary proceedings in connection with their activities on behalf of the striking janitors. The protest activities never got unruly or violent, but the administration insisted the students were disruptive. All the students were sanctioned, and all received similar penalties.

Lemmerman was sentenced to two semesters of disciplinary probation, 10 hours of community service, and had to write a 500-word essay on the lessons he learned from his involvement in the protests.

On May 1, UM, whose president is former U.S. Health and Human Services Secretary Donna Shalala, reached an agreement with the striking workers’ employer, Boston-based UNICCO. Three weeks later, Singleton called Lemmerman to inform him that he would be charged with two violations. Kukec said Singleton banned him from attending the proceeding as Lemmerman’s counsel, even though the university manual does not bar a student from having an adviser present at charge proceedings.

Lemmerman was charged with two disciplinary infractions — disorderly conduct and failing to obey a lawful command. Both allegations stem from an April 17 protest in which Lemmerman joined demonstrators who stood in front of the university’s Ashe Building, with tape placed symbolically over their mouths.

Rodriguez said UM waited to file charges so that hearings would be scheduled in the summer months after the end of the school year — when charges are ruled on by a single administrator rather than the University Disciplinary Hearing Panel. That panel consists of three students and an adviser.

Lemmerman was convicted during a June 29 telephone hearing.

There were other problems with the process, according to Kukec. “The sole evidence against my client was two photographs taken by an administrator,” he said. “This was the same administrator who was scheduled to hear our appeal. I actually had to raise the issue of a conflict of interest before they handed it off to someone else.”

Campus police controversy

An underlying issue that Rodriguez expects to raise as part of the suit is UM’s use of campus police to monitor legal protests. “What kind of surveillance did the university’s public safety department perform, and what hat were they wearing when they did it?’ ” she asked.

The nebulous nature of the private university’s police force has been raised in courtrooms for years. The UM campus police force consists of officers who are sworn officers of the Coral Gables police department.

Miami attorney John Leighton said it is illegal for a private entity to direct the actions of a public police department. In 1997, Leighton lost a federal suit against the school. The case, which involved the murder of UM linebacker Marlin Barnes, hinged on the nature of UM’s campus police force. Leighton said UM gets around the law by saying that the officers sometimes are city police and sometimes are not.

“You’ve got a situation where private individuals, whose first priority may not be public safety, are making decisions about deploying police,” Leighton said.

Sgt. Mike Frevola of the Coral Gables Police Department said that his department’s manual of standard operating procedure states that UM police have the same police powers as Coral Gables cops “when acting as law enforcement officers with police purpose or authority.”

Isicoff defended the university’s security arrangement. “The university does have a police department which is composed of officers who derive their police powers from the Coral Gables Police Department,” he said. “However, they are employees of, and report to, and are directed by, the University of Miami.”

Former UM police officer Andy Allocco and nine other ex-UM campus police officers — who were sworn Coral Gables police officers — lost a federal lawsuit against the university seeking the same pay and benefits as Coral Gables officers. In an interview, Allocco said that at times, UM ordered him to do things that had less to do with public safety and more to do with boosting the school’s public image.

Rodriguez said the unclear nature of the UM campus police calls into question the legitimacy of their actions when they make arrests or exercise any police powers.

“When is it OK for them to arrest someone?” she asked. “And do they have to follow the same procedures as Coral Gables police if they want to do a search, or do surveillance? The university can’t have it both ways.”

Forrest Norman can be reached at fnorman@alm.com or at (305) 347-6649.